Distribution of Prize amongst joint captors.

of their respective boats, unless the capturing boats have been detached for a time from their proper ships, and are attached to some other ship; but the claim of constructive joint capture by boats founded on the mere facts of such boats being in sight at the time of capture, has been rejected by Lord Stowell 89. "I am not in possession," he says, "of any case in which a boat, without any actual assistance or previous concert, has been held, from being in sight only, to be entitled to share as a joint captor, even to the extent of the persons composing the boat's crew, much less to establish a claim of joint capture for the whole ship to which the boat belongs."

§ 185. The distribution of prize amongst Joint Captors, in the absence of any positive Statute or Ordinance of the State to which they belong, is made upon general principles according to a scale proportionate to their respective force; for in that proportion they may reasonably be supposed to have contributed their aid in overpowering the enemy, if they have actually taken part in the contest, or to have caused an intimidation by their approach, which had led to his surrender, before they have been able to take part in the contest. Bynkershoek, who is averse altogether to the doctrine of constructive joint capture, advocates in the case of actual joint captors a distribution according to their respective force, from the difficulty of measuring by any more accurate test the degree in which each has assisted to overcome the enemy. Such a rule is generally adopted in the present day, in cases where the fleets of two or more allied Powers have acted in conjunction. But in the application of the rule different results will be arrived at, according as the respective force of the captors is

88 The Odin, 4 Ch. Rob. p. 327.

90

calculated in proportion to the number of guns, or the number of men, or the number of guns and men combined. The British Prize Acts direct the whole proceeds to be divided amongst all the officers and crews of the respective vessels adjudged to be joint captors according to a scale fixed by Royal proclamation, under which all the officers and men of equal rank take an equal share; and the Royal Proclamations of 1854 declares that ships or vessels being in sight of the prize as also of the captors, under circumstances to cause intimidation to the enemy and encouragement to the captors, shall be alone entitled to share as joint captors. The Prize Act further directs the Court of Admiralty, in all cases where her Majesty's ships have acted in conjunction with the ships of a Power in alliance with her Majesty, to apportion to such Ally a share of the proceeds of such prize, according to the number of officers and men present and employed on the part of such Ally as compared with the number of officers and men employed on the part of her Majesty in taking such prize, and without reference to their respective rank. France, by a Decree bearing date 23 May 1854, has adopted a like rule of division 91. There had been a previous Convention on the subject of prize between France and Great Britain, and each State had directed its Prize Courts by a municipal enactment to observe such a rule of distribution in every case of capture, in which the ships of an Ally were concerned, as would give effect to that Convention. Neither State undertook to distribute the share of its Ally, but the Courts of Prize were directed to transmit the share, apportioned to the Ally, to such persons as should

89 Royal Proclamation of 29 March 1854.

90 17 Vict. c. 18. (2 June

1854.)

91 Pistoye et Duverdy, Tom. II. p. 447.

Condemnation of

to the port

be duly authorised on behalf of the Ally to receive the same, and whose duty it would be to superintend the distribution of that share amongst the parties entitled to it according to its own laws and regulations. In the United States of America the standard of distribution amongst public ships in cases of joint capture appears to be the combined number of men and guns on board of each ship in sight; but as regards private armed ships no regulation has been adopted, and the distribution is governed by the general rule of prize distribution, namely, in proportion to the number of men composing their respective crews. Such also was the rule of the English Prize Courts in regard to privateers, as settled by solemn adjudications at the Cockpit and in the King's Bench 93. Mr. Justice Story observes, that "this rule has the advantage of great practical simplicity and general equity. It seems bottomed on the soundest sense, and places the relative force in the power and activity of animated beings, in which it must always ultimately reside, rather than in the mere instruments, which without such power would be useless and unavailing.

§ 186. The apportionment of a share of the proceeds Prizes of prize to an Ally is within the competency of the brought in- Prize Courts of a belligerent Power, for a belligerent of an ally. Power and its Ally form one State for the purpose of a common war, unam constituunt civitatem 95. In a similar sense the ports of an Ally are equivalent to the ports of the co-belligerent State, to which the capturing vessel belongs, for the purpose of founding the

92 Act of 23 April 1800. (5 vol. U. S. Laws, p. 108.)

93 Roberts and Hartley, 3 Douglas, p. 311. Duckworth v. Tucker, 2 Taunton, p. 7.

94 The brig Despatch and her cargo, 2 Gallison, p. 2.

95 The Henrick and Maria, 4 Ch. Rob. P. 60.

jurisdiction of the Courts of the Captor over the prize. Claims of Prize were originally prosecuted before the Admiral of the Fleet 96 to which the capturing vessel belonged, or his Lieutenant 97; and although by the Municipal Law of some countries 98 other authorities besides the Admiral or his DeputyGeneral might hold cognisance of maritime captures, the Admiral or his Vicegerent was the competent judge upon questions of Prize, as between Nations 99. There was no necessity at any time, as between Nations, for the Captor to bring his prize within the ports of his own State to found the jurisdiction of the Admiral over it: if it was brought infra præsidia, so as to secure it from recapture by the enemy, it was sufficient, and this condition is evidently satisfied by the Captor carrying his prize into the port of an Ally. A sentence of condemnation is accordingly held to be valid, if it be passed by a Court of Admiralty sitting in the country of the Captor against a ship and cargo, which have been brought by the Captor into the port of an Ally 100. The proper and regular Court for the Trial of Prize is the Court of the State to which the Captor belongs; but where the capture is made by the joint forces of two countries, it is usual for the co-belligerent Powers to agree that the adjudication of all questions of Prize shall belong to the jurisdic

96 Rymer, Fœdera, Tom. IV. England and Charles VIII of p. 14, anno 1357.

97 Ordinance of Charles VI of France, anno 1400. Lebeau, Nouveau Code des Prises. Tom. I. p. 1.

98 Ordinance of Henry VI of England, anno 1496. Rymer, Fœdera, Tom. X. p. 168.

99 Treaty of Peace and Commerce between Henry VII of PART II.

France, 24 May 1497. This treaty is well worthy of notice as containing many regulations for the Prize proceedings of the fifteenth century, which correspond with the practice of the present times. Robinson's Collectanea Maritima, p. 83.

100 The Christopher, 2 Ch. Rob.

p. 209.

B b

Treaty between Den

Genoa.

tion of the country, of which the flag shall have been borne by the officer having the superior command in the action'. It is not usual for a belligerent Power to set up a Court of Admiralty within the territory of an Ally, although under treaty the Ally might have granted authority for such a purpose, and as co-belligerent Powers in the operations of war form one State, no principle of the Law of Nations would be violated thereby. On the other hand, it would be a violation of Neutrality for a State, which is not a co-belligerent, to allow a belligerent Power to set up a tribunal of Prize within its territory, and to allow it to condemn to the use of the captors the property of the subjects of Powers, with which it is at amity. Lord Stowell accordingly refused to recognise a sentence of condemnation passed by a French Consular Court set up within the port of Bergen in Norway upon a British vessel, which had been brought in as prize into that port by a French cruiser, Norway being at such time a Neutral Power, on the ground of "the act of the French Consul being a licentious attempt to exercise the Right of War within the bosom of a neutral country, where no such exercise has ever been authorised"."

Mr. Manning in his Commentaries on the Law of mark and Nations3 has referred to a Treaty concluded on 30 July 1789 between Denmark and Genoa, as being an exception to the rule, which Lord Stowell on this occasion asserted to be universally received, in matters of Prize, namely, that the tribunals of the Law of Nations in those matters should exercise their jurisdiction within the belligerent country; but it may

I Convention between France and Great Britain 10 May 1854. Martens, N. R. Gén. Tom. XV. p. 581.

2 The Fladoyen, I Ch. Rob. p. 146.

3 P. 381.